Principles for Public Safety Employment

appeal must be provided, the Court of Appeal has held that an agency cannot satisfy the requirements of the POBR by providing an administrative appeal hearing before the imposition of a punitive action. The Court of Appeal rejected a procedure in which the appeal came before the punitive action in Morgado v. City and County of San Francisco. 249 The City and County of San Francisco implemented a procedure for the imposition of police officer discipline in which the Office of Citizen Complaints made a recommendation to the Chief of Police. The Chief made a made a disciplinary complaint to the Police Commission, but, before any particular discipline was actually imposed, the officer had the right to an evidentiary hearing before the Commission. The Commission made the decision as to the level of discipline. There was no further right of appeal. The court held that this violated section 3304(b) because the Chief’s decision was a mere “interim step,” and there was no opportunity to appeal the final disciplinary decision (made by the Commission.) The court therefore held that a hearing that allowing the officer to challenge a recommendation that he be disciplined did not fulfill the statute; only an appeal after discipline is imposed. The Court of Appeal in Gonzalez v. City of Los Angeles 250 considered the LAPD’s Board of Rights procedure, in which the Chief of Police adopted a recommended penalty of “Board of Rights for Removal”, in which the decision was sent to the Board with the particular proposed remedy of termination. The Gonzalez court distinguished Morgado and upheld the validity of the LAPD’s Board of Rights system because in the LAPD system, even though a final decision was not made before the imposition of discipline, the specific disciplinary sanction was selected or imposed before the Board hearing. A public safety employee is entitled to an administrative appeal whenever he or she is subjected to “punitive action.” 251 Under the POBR, what constitutes “punitive action” has been broadly defined by the courts as any action that results in any loss of pay. The reasoning in these cases will likely also apply to firefighters under the FBOR’s administrative appeals provision. 252 a. A CTIONS THAT A RE C ONSIDERED P UNITIVE In White v. County of Sacramento , 253 a deputy sheriff was removed from the detective division and reassigned to patrol based on deficient performance. As a result of the reassignment, the deputy lost his specialty pay. The court held that the deputy was entitled to an appeal and stated that “a decision to reassign a peace officer to a lower paying position is per se disciplinary, or punitive in nature, and that the officer must therefore be accorded the opportunity for [an] administrative appeal.” 254 A similar case arose in McManigal v. City of Seal Beac h. 255 In McManigal , an officer was transferred from the motor unit to patrol upon the recommendation of his supervisor who believed the officer’s performance was sub-par. As a result of the reassignment, the officer lost his “skill” pay. The court noted that the White case made it clear that a reassignment to a lower 2. W HAT C ONSTITUTES A P UNITIVE A CTION G IVING R ISE TO AN A DMINISTRATIVE A PPEAL ?

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